PrintFebruary 19, 2009
New Ruling May Well Lead to AIPAC Acquittals
Secrecy News bring some long awaited news about a ruling in the AIPAC case which may well lead to the acquittal of the defendants in that long running and most peculiar prosecution:
A federal court this week ruled that J. William Leonard, the former director of the Information Security Oversight Office, may testify for the defense in the long-running prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) who are charged with illicitly receiving and transmitting classified information that prosecutors say is protected from disclosure.
Prosecutors had sought to prevent Mr. Leonard, a preeminent expert on classification policy, from testifying for the defendants, on grounds that he had briefly discussed the case with prosecutors while he was still in government. They even suggested that he could be liable to a year in jail himself if he did testify. To protect himself against such pressures, Mr. Leonard (represented by attorney Mark S. Zaid) moved to challenge the subpoena in the expectation that the court would order him to testify, thereby shielding him from any potential vulnerability. ("To Evade Penalty, Key AIPAC Witness Seeks to Quash Subpoena," Secrecy News, September 2, 2008). The court has now done so.
In a February 17, 2009 memorandum opinion (pdf), Judge T.S. Ellis, III affirmed the subpoena and directed Mr. Leonard to testify for the defendants.
The ruling's consequences for the AIPAC case are likely to be momentous, because government secrecy policy has become a central focus of the proceeding and because Mr. Leonard is the strongest witness on that subject on either side.
As the author of the blog, Steven Aftergood notes, the Court in this case did not follow the usual procedure of deferring to the agency head's determination on whether the information involved is classified or not.In this case Judge Ellis said that it is for a jury to decide because "the government's classification decision is inadmissible hearsay" Judge Ellis wrote.
Competing experts will be called at trial to help the jury make this critical determination but, the expert the defense wished to call--and now may--Mr, Leonard, has broader experience and was the only one to report to the President on classification matters.Aftergood notes
Competing experts will be called at trial to help the jury make this critical determination but, the expert the defense wished to call--and now may--Mr, Leonard, has broader experience and was the only one to report to the President on classification matters.Aftergood notes
Judge Ellis wrote with perhaps a hint of admiration that the defense "understandably characteriz[es] Leonard's experience and expertise as 'unsurpassed'."
In sum, Aftergood observes, and I concur in his judgement that the defendants will probably be acquitted as a result of this ruling.
As noted in the new opinion, Mr. Leonard will testify for the defense on the "pervasive practice of over-classification of information," "the practice of high level officials of disclosing classified information to unauthorized persons (e.g. journalists and lobbyists)," whether the classified information in this case qualifies for protection under the Espionage Act, and "whether... the defendants reasonably could have believed that their conduct was lawful."
